1 – Applicability
Unless agreed otherwise, these Terms and Conditions apply to all tenders and agreements between Client and Raritan which contemplate the purchase by Client of goods from Raritan (“Products”) with the intent of reselling such Products to third parties (a “Reseller Agreement”) and all the related activities, both of a preparatory and executory nature. In the event that the Client issues a Purchase Order for the purchase of Products from Raritan and there is a conflict between the terms of the Purchase Order and these General Terms, these General Terms shall control. In the event that the Client and Raritan have entered into a Reseller Agreement and there is a conflict between the terms of the Reseller Agreement, including any Schedule attached thereto, and these General Terms or the terms of a Purchase Order, the terms of the Reseller Agreement shall control.
2 – Offer and acceptance
(a) All purchases are to be made pursuant to the issuance by the Client of a Purchase Order. Each order shall be submitted in writing to Raritan’s principal office at Jan van Galenstraat 59, 3115 JG SCHIEDAM, The Netherlands or such other address as is set forth in a Reseller Agreement.
(b) Raritan shall have the exclusive right to accept or reject any Purchase Order submitted by Client. A Purchase Order shall be deemed accepted by Raritan unless notice of rejection is delivered to the Client within 5 business days of receipt of the order.
3 – Delivery
Raritan will ship products by such means requested by Client in its order. If no method of shipment is designated, Raritan shall select the carrier. All costs of shipment shall be the responsibility of the Client. The delivery of Products shall take place in accordance with the Conditions of Delivery Ex-works (EXW). This means that the Client shall be responsible for any risks incurred by the Products from the moment of transfer to the carrier, starting with the loading of the Products onto the lorry. All the costs, including the costs of insurance for the transportation, the documents, customs transactions, and the related risks are at the Client’s own expense and risk. Raritan may refuse to ship or stop shipment if Client is not in compliance with these General Terms or the terms of a definitive agreement or any order. Delivery dates shall be good faith estimates only. Raritan shall have no liability for, and Client shall not be excused from payment for, late shipments.
4 – Prices and payment
(a) All prices are excluding VAT and/or any taxes imposed by or under the authority of any government. Client shall be responsible for all applicable taxes, duties and fees required. Prices and other terms and conditions are subject to change by Raritan upon written notice.
(b) Invoicing will take place immediately upon delivery of the Products ordered to the carrier.
(c) Raritan shall in respect of its services and/or deliveries at all times be entitled to charge one or more advance payments for a period of up to two months, up to the amount of its expected performance, which shall be deductible by invoice. If the Client shall fail to pay the advance, Raritan shall have the right not to commence, to suspend or to cease the services and/or deliveries.
(d) Invoices shall be paid at the latest 30 days after the date of the invoice, including VAT, into a bank or giro account indicated by Raritan. In the event of late payment the Client shall be legally in default, and even without any notification of default in relation to this, owe the interest on the outstanding amount from the due date, equal to the highest rate of interest allowed by law. If Raritan transfers the collection of the claim on the Client to a third party, the Client shall bear all the legal and extra-legal expenses incurred by the collection.
(e) The Client shall notify Raritan in writing of any objections to Raritan’s invoice within two weeks of the date of invoice. Failing this, the Client shall be deemed to have agreed to the amount of the invoice.
5 – Intellectual property
(a) Client is granted a license to use the intellectual property embodied in the Products as provided by Raritan solely in its role as a reseller of the Products pursuant to this Agreement. Client shall not modify, translate, decompile, reverse engineer the software and hardware included with the Product or otherwise attempt to determine design details of the Product not set forth in publicly available documentation, nor shall Client adapt the Product in any way to create a derivative work. Other than the right granted herein to license the intellectual property embodied in the Products and related materials, Client shall have no rights in or to the intellectual property.
(b) Trademark and Copyright License.
i. Raritan grants Client a license to use, exhibit, excerpt, reproduce, publish, publicly perform and transmit via the Internet and otherwise use all trade names, trademarks, and service marks associated with the Products to promote and sell the Products. Client agrees to comply with Raritan's trademark usage guidelines, as may be modified from time to time; provided that Raritan shall give Client reasonable notice of any material modification to such guidelines and Client and Raritan shall negotiate in good faith, a commercially reasonable amount of time for Client to implement such changes. Raritan has and shall retain exclusive ownership of Raritan's marks. Neither Client nor its affiliates shall contest or challenge or do anything inconsistent with, Raritan’s exclusive ownership of Raritan’s marks.
ii. Raritan may provide to Client, without limitation, Product specifications, images, and other textual, graphical and/ or multimedia content regarding the Products for use in preparing advertising and promotional material ("Raritan Content"). Subject to any limitations which Raritan previously communicates to Client in writing, Raritan hereby grants Client a license to use, exhibit, excerpt, reformat, modify, reproduce, publish, publicly perform and transmit via the Internet and otherwise use such Raritan Content, other than non-public Raritan Content, for the purpose of advertising and promoting the Products.
iii. Upon termination of a Reseller Agreement, Client may continue to advertise and promote the Products, using Raritan's trade names, trademarks, service marks and Raritan Content until inventory depletion.
(c) Trademarks and Trade Names.
i. Client acknowledges Raritan’s ownership of all right, title and interest in all of Raritan’s trade names, trademarks and service marks, including without limitation the Product names and all other trademarks, trade names and service marks associated with the Products (the “Marks”). Client shall not, directly or indirectly, register, apply for registration or attempt to acquire any legal protection for identical or confusingly similar Marks or any proprietary rights in its own name or take any other action which may adversely affect Raritan’s right, title or interest in or to the Marks.
ii. Client shall be prohibited from using any of the Marks, or any confusingly similar Mark, in whole or in part, as part of Client’s business or trade name, or as part of an Internet URL used by Client, without the express prior written consent of Raritan, which consent can be withheld by Raritan for any or no reason in Raritan’s sole discretion. Raritan makes no warranty, express or implied, as to the use or validity of the Marks.
iii. Client will represent, display and demonstrate Raritan’s Products fairly at all times, and will refrain from making any knowingly false or misleading statements, claims or representations with respect to Raritan, Raritan’s Products, or any of Raritan’s Distributors, other Raritan resellers, partners or Affiliates. Client will maintain high standards of professionalism in marketing Raritan’s Products, and will refrain from any unethical conduct or any other conduct that tends to damage the reputation of Raritan. Raritan shall have the right to display Client’s name and logo as being a Raritan authorized Client on Raritan’s promotional materials including but not limited to websites, brochures and displays.
iv. Prior to public use or distribution of new marketing materials containing the Raritan’s Marks or referring to Raritan and/or the Raritan’s Products (including materials posted on the Internet), Client will provide Raritan with samples of all such products and materials, and refrain from using such materials until Raritan has provided written approval for such use.
v. Raritan may, without prior notice, revoke Client’s rights and privileges under Article 7.2 in the event that Client has failed, or Raritan has reason to believe that Client has failed, to meet its obligations under these General terms or a Reseller Agreement.
vi. Any and all goodwill arising out of Client’s use of such intellectual property shall be and remain the exclusive property of Raritan.
vii. Client shall not remove any copyright notices, trademarks or other proprietary markings printed on the Product packaging, provided with or on the Product, in the documentation or other materials related to the Products, or programmed into the Product software.
6 – Confidentiality
(a) The Client may have access to, and Raritan and its affiliates may disclose to Client (orally, visually or in writing) certain proprietary information, data and documents including, without limitation, information relating to the Products, Raritan’s business operations, markets, processes, services, trade secrets, market strategies, development, finances, business systems and techniques (collectively, the “Raritan Confidential Information”). The Raritan Confidential Information shall not include any information or portions of information which (i) becomes generally available to the public (other than as a result of a disclosure by the Client), (ii) becomes available on a non-confidential basis from a source other than the Client which the Client reasonably believes is entitled to disclose it, or (iii) has been independently acquired or developed by the Client without violating any of its obligations under this Agreement; provided, however; that with respect to (ii) and (iii) Client can demonstrate such non-violation by written documentation.
(b) The Client shall at all times hold in strict confidence any Raritan Confidential Information disclosed to the Client , or to which the Client obtains access, and shall not, without the express written consent of Raritan, directly or indirectly, divulge, publish, release or otherwise disclose the Raritan Confidential Information unless compelled to do so pursuant to legal process.
(c) All Raritan Confidential Information disclosed to the Client by Raritan is, and shall remain, the sole property of Raritan. Upon termination of the relationship between Raritan and the Client, the Client agrees to promptly return to Raritan or destroy all Raritan Confidential Information which may be in the possession of or under the control of the Client.
(d) This Agreement does not constitute any right or license granted by Raritan to the Client to use Raritan’s or its Affiliates’ intellectual property (including, without limitation, copyrights, trademarks, trade names or the like) in any way except as expressly provided for herein.
7 – Reservation of title
All the Products delivered continue to be owned by Raritan, as long as Raritan has not yet been fully paid for such Products. As long as the reservation of title shall apply with regard to any Products, the Client shall not be permitted to process the Products. Product may be resold only in Client’s normal course of business. Client agrees to immediately report to Raritan (a) any seizure or attachment of the Product by Client’s creditors, (b) any petition in bankruptcy, insolvency receivership or similar proceeding filed by, or against, Client or (c) any arrangements, composition or similar agreement for benefit of Client's creditor's.
8 – Amendments to Reseller Agreements, Schedules and the General Terms
Except as otherwise provided herein, a Reseller Agreement shall not be subject to change or modification except by the proper execution of another written instrument by the parties; provided, however, that Raritan may amend, modify, supplement, or otherwise change any Schedule or Attachment thereto or these General Terms and such new Schedule or Attachment or General Terms shall be deemed incorporated in the Reseller Agreement and binding upon Raritan and the Client upon delivery of notice of the amendment, modification, supplement or change to Client provided that the Client does not notify Raritan of any objection to the amendment, modification, supplement or change within five business days of receiving notice thereof and except that such amendment, modification, supplement or change shall not apply to orders accepted by Raritan prior to the date of such notice. If the Client objects to the amendment, modification, supplement or change, there shall be deemed a termination of the Reseller Agreement by mutual agreement of the Parties.
9 – Client Activities
(a) The Client is an independent contractor. The Client shall not hold itself out as an authorized representative of Raritan nor have any authority to make any representation or guarantee or any contract in the name of or on behalf of Raritan. Nothing in this Agreement is intended to or shall be deemed to establish a partnership, joint venture, collaboration financial or technical, fiduciary, agency or franchise relationship between Raritan and the Client shall not create any obligation of any kind, whether express or implied, on behalf of Raritan with respect to Client. The Client shall not be in any way authorized or empowered to bind Raritan.
(b) Client will: (i) conduct business in a manner that reflects favourably at all times on Products and the good name, goodwill and reputation of Raritan; (ii) not publish or employ, or cooperate in the publication or employment of, any misleading or deceptive advertising material with regard to Raritan or the Products; (iii) fully observe and comply with all applicable laws, ordinances, rules and regulations of all duly constituted authorities applicable to the promotion and sale of the Products; and (iv) make no representations, warranties or guarantees to customers or to the trade with respect to the specifications, features or capabilities of the Products that are inconsistent with the literature distributed by Raritan;
10 – Indemnification
(a) Raritan shall indemnify Client and hold such Client and its officers, directors, shareholders, employees and agents, harmless from any and all damages, liabilities, costs and expenses (including, but not limited to, reasonable attorney’s fees) incurred by Client, or any of their officers, directors, shareholders, employees or agents, arising from any of the Raritan’s acts or omissions in performing its obligations or exercising its rights pursuant to a Reseller Agreement or from any breach or default by the Raritan under such Agreement.
(b) The Client shall indemnify Raritan and its affiliates and hold Raritan and its affiliates, and their officers, directors, shareholders, employees and agents, harmless from any and all damages, liabilities, costs and expenses (including, but not limited to, reasonable attorney’s fees) incurred by Raritan and its affiliates, or any of their officers, directors, shareholders, employees or agents, arising from any of the Client’s acts or omissions in performing its obligations or exercising its rights pursuant to a Reseller Agreement or from any breach or default by the Client under such Agreement.
11 – Non-solicitation
During the time a Reseller Agreement remains in effect and for one (1) year thereafter, neither party shall, directly or indirectly: (a) hire or solicit or induce or assist any third party in hiring, soliciting or inducing any employee or independent contractor of either party or its affiliates to leave their employ and work for anyone in competition with either party or its affiliates; or (b) interfere with, disrupt or attempt to disrupt the relationship, contractual or otherwise, between either party and its affiliates and any customer or prospective customer, supplier, lessor, independent contractor or employee of either party or its affiliates. Generalized searches for employees by a party, through media advertisements, employment firms or otherwise, that are not focused on persons employed by the other party shall not be considered a breach of this Article 11.
12 – Force Majeure
Neither Party shall be responsible or liable for any delay or failure in performance to the extent such delay or failure is caused by fire, strike, embargo, explosion, earthquake, flood, war, water, the elements, labour dispute, government requirements, acts of God, inability to secure raw materials or transportation facilities, acts or omissions of carriers or suppliers, or other causes beyond a Party’s reasonable control or, in any event, for consequential damages.
13 – Export Controls
Client agrees to take any and all actions necessary to comply with applicable export laws and regulations and other applicable foreign laws in its performance of this Agreement, including making determinations of final destination of Products licensed to Licensees and ensuring, if any Product may be re-exported or transferred to a location outside the Territory, that such re-export or transfer is not in violation of any applicable export law. Client acknowledges that certain of the Products may be deemed to have United States content and therefore be subject to the United States Export Control Laws.
14 – Assignment
The Client shall not assign or otherwise transfer a Reseller Agreement or any interest therein or any right thereunder without the prior written consent of Raritan, and any such purported assignment, transfer or attempt to assign or transfer any interest therein or right thereunder, without the prior written consent of Raritan, shall be null, void and of no effect. Raritan shall not have the right to assign a Reseller Agreement to any other person or entity except for a Raritan affiliate; provided, however; that upon the sale of all or any substantial portion of the business or assets of Raritan, or any merger or consolidation or other reorganization of Raritan with any other person or entity, the provisions of Reseller Agreements shall be binding upon any successor or assign. Raritan shall advise any successor or assign of the existence and terms of any Reseller Agreements.
15 – Resolution of disputes and applicable law
(a) If one or more articles of these conditions are adjudged by a court to be invalid, the other provisions of these Terms and Conditions shall continue to apply in full, and Raritan and the Client shall enter into negotiations in order to agree on new provisions to replace the provisions that have been declared null and void or that have been overturned, observing as far as possible the aim and scope of the provisions that have been declared null and void or the provisions that have been overturned.
(b) All offers made and all agreements concluded under these conditions shall be governed in all respects by the laws of The Netherlands.
(c) Client and Raritan hereby agree to attempt in good faith to resolve any controversy or claim arising out of or relating to a Reseller Agreement, including any Schedule or Attachment thereto or these General Terms, promptly by negotiations between representatives of Client and Raritan who have authority to settle the controversy. The parties shall not seek any other form of relief, except a preliminary injunction or other judicial relief if such action is necessary in the reasonable judgment of such party to avoid irreparable damage, until the parties have made a good faith attempt to reach a negotiated resolution for at least 60 days. All applicable statutes of limitation shall be tolled while the procedures specified in this Article are pending, and the parties will take such action, if any, required to effectuate such tolling.
(d) Any disputes directly or indirectly arising from the agreement, or related to it, shall exclusively be brought before the competent court in Rotterdam.
(e) Any specific right or remedy provided in this Agreement shall not be exclusive but shall be cumulative upon all other rights and remedies set forth herein and allowed under applicable laws. 16 - Compliance With Sustainable Development And Business Ethics Requirements
The Distributor acknowledges that he is acquainted with and undertakes to respect RARITAN’s CSR commitments, set out in particular in the “Guide to Good Business Practices of Legrand Group”.
The Distributor undertakes thus to comply with the RARITAN’s CSR policy in particular regarding the UN Global Compact and, therefore, to:
The Distributor and his subcontractors also undertake to comply with the conventions of the International Labour Organization as well as with any regulation applicable to their activities in the countries in which they operate.
The Distributor and his subcontractors undertake to comply with all national and international applicable laws and regulations relating to the prevention of corruption of each country they are established in as well as in the countries in which they operate and to act in compliance with competition law.
The Distributor undertakes to impose on his own clients and subcontractors, to comply with the same rules as those he must comply in accordance with this article.
RARITAN reserves the right to conduct at any time audits in order to make sure that the Distributor and his subcontractors are complying with the afore-mentioned requirements. To this end, the Distributor shall grant to the internal or external auditors mandated by RARITAN full access to its production and administrative sites.
RARITAN also reserves the right to require any information or document allowing him to verify Distributor’s compliance with his obligations.
The Distributor shall defend and indemnify RARITAN for all liabilities, penalties, losses, damages, costs or expenses that may be imposed on or incurred by ‘RARITAN’, including any legal fees and transaction expenses, in connection with any violation of such article by the Distributor. The Distributor is responsible for any action or omission in the performance of its obligations under this article, whether through its own action or inaction or that of its representatives, employees, affiliates, agents, supplier or sub-contractors, or any other person under his direction and authority, of any kind.
If the Distributor doesn't comply with one of these rules, RARITAN may immediately terminate for breach this Agreement without notice, without prejudice to any other right conferred by the legislation.
17 - Prevention Of Conflict Of Interest
The Distributor warrants that upon signature of this Agreement, there is no situation of conflict of interest, and therefore that no element distorts or is likely to distort the execution of this Agreement due to interest contradictory to its proper execution, at the cost of RARITAN interests.
The Distributor undertakes to declare any conflict of interest, even potential, which will arise during the execution of the Agreement. In this case, RARITAN reserves the right to early termination of the Agreement.
18 - Compliance With Anti - Money Laundering Laws
The Distributor undertakes :
- to issue or collect all financial flows in compliance with the United States, the European Union or any other applicable anti money laundering laws and regulations of all jurisdictions, the rules and regulations there under and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency;
- to pay all taxes, duties or fees and other impositions of whatesoever nature, including customs duties, stamp duty and registration fees, arising out of the execution or implementation of this Agreement;
- to comply with all laws, treaties, rules, and regulations of any governmental authority, including without limitation, foreign exchange control and currency reporting laws and regulations , now or hereafter applicable;
and to defend and hold Legrand harmless from any expense or damage resulting from its violation or alleged violation of any such law or regulation in the performance of this Agreement.
19 – Compliance With Provisions On Embargoes
The Distributor undertakes to comply with all laws and regulations on embargoes, sanctions of an economic, commercial or financial nature, and other restrictive measures specified by France, the United States, the European Union or any other applicable national legislation (“embargoes”), and to obtain all licenses, shipping documents and authorizations required for the resale, export or re-export of the Products.
Accordingly, the Distributor undertakes not to:
- Export or re-export the Products covered by this Agreement, to a banned country, or one which is subject to restrictions, without having obtained all necessary authorizations from French, European or American authorities or those of any other country that imposes export control;
- Supply the Products covered by this Agreement, to parties, organizations or entities subject to restrictions by France, the European Union or any other country, nor to parties, organizations or entities about which there are reasons to believe that they fail to fully comply with the applicable national or international regulations;
- Export or re-export the Products covered by this Agreement, for the purpose of using them in sectors that are banned or subject to restrictions by virtue of laws and regulations on embargoes;
- Issue or collect any financial flows without having previously notified and/or obtained the necessary authorizations from the competent national authorities.
The Distributor alone holds liability, in the capacity of reseller/exporter of the Products covered by this Agreement, as regards compliance with its obligations relating to the applicable embargoes and undertakes to compensate and defend RARITAN as regards any claims or proceedings instigated by authorities or third parties on the grounds of breaches of the provisions of this Article.
RARITAN shall be entitled to audit the Distributor’s compliance with obligations relating to these matters. The Distributor shall, in the framework of its sound business relationship with ‘RARITAN’, supply on request all licences, notifications or authorisations applied for and obtained, and information on the identity of customers to whom the Products are resold, the intended use of the Products and the financial institutions used to collect and issue payments. In turn, RARITAN shall supply on request any information requested by the Distributor, in particular any useful commercial documentation.
In the event of the Distributor breaching any one of its obligations in the audit framework, and failing to remedy this or take positive actions for the purpose of remedying such default within three business days subsequently to receiving written notice to perform the one or several obligations, RARITAN reserves the right to cancel the order or terminate this agreement, without such action creating any liability whatsoever with regard to the Distributor or end user.
When the delivery of the Products, services or documentation requires an export or import permit from certain authorities or is banned due to legislation on export/import controls, RARITAN shall be entitled to suspend its obligations and the Distributor`s rights until the permit has been granted, or for the duration of such restrictions or bans. RARITAN shall even be entitled to cancel the order or terminate this agreement without creating any liability whatsoever with regard to the Distributor or end user.
20 - Personal Data
Distributor may be required to disclose personal data relating to any private individuals (natural persons) who are acting on its behalf (the “Data subjects”). These data will be collected by RARITAN and processed for purposes of complying with a legal obligation (anti-corruption, combating fraud, etc.) on the basis of the legal obligation, for purposes of performing the contract on the basis of the contract, for managing business relations, compiling business statistics and direct prospecting on the basis of a legitimate interest corresponding thereto.
RARITAN undertakes not to retain these data for a period exceeding three (3) years from the last commercial transaction, except where a longer retention period is authorised or required by a legal or regulatory provision or if the customer has exercised one of the rights to which it is entitled under the law, in the conditions provided below.
Access to these data is strictly limited to the employees and agents of RARITAN with clearance to process the same by virtue of their duties, unless RARITAN is compelled to share the same for legitimate reasons (legal obligation, combating fraud or abuse, exercising rights of defence, etc.). RARITAN may also be led to make these data available to other entities in the Group and/or to providers acting in the capacity of subcontractors (for example: carriers). In the event these data have to be transferred outside the European Union, RARITAN undertakes to put the necessary contractual warranties in place to ensure protection and confidentiality of the data.
In accordance with French Data Protection Act No 78/17 of 06/01/78 as amended and the General Data Protection Regulation No 2016/679 of 27/04/2016, Data subjects have a right of access, rectification, portability and limitation over the processing of personal data concerning them. They may apply for erasure or oppose the processing of their personal data, unless the processing is based on a contract or a legal obligation. Finally, they also have the right to direct what happens to their personal data after their death.
1. If (i) any government agency recommends or requires the recall of any Products or packaging; or (ii) RARITAN determines that any Products or packaging should be recalled from distribution and sale; in either case, based upon a determination that such Products are contaminated, constitute a health or safety hazard, infringe the rights of third parties, or are otherwise not saleable, then RARITAN and Distributor shall coordinate the immediate cessation of sale and distribution and/or the recall as necessary of all such Products from the Territory. If necessary or advisable, RARITAN and Distributor shall cooperate to recall and/or reacquire the applicable Products from any purchaser thereof.
2. If the problem at issue was not caused by ‘RARITAN’, then Distributor shall pay the costs and expenses associated with any such recall, and Distributor shall indemnify Supplier for all of RARITAN reasonable costs and expenses associated with such recall.
3. If the problem at issue was caused by ‘RARITAN’, then RARITAN shall pay the costs and expenses associated with any such recall, and RARITAN shall indemnify Distributor for all of ‘Distributor’s reasonable costs and expenses associated with such recall.
4. In any case, the Distributor commits itself to carry out diligently the withdrawal/recall operations decided by ‘RARITAN’. The recovery rate shall not be less than 95% of the sales of Products in case of withdrawal, or 80% of the sales of Products in case of recall. The Distributor may be held liable if he has not fully achieved the aforementioned rates within the timeframe determined by the ‘RARITAN’.
22 - Limitation Of Liability
The Distributor agrees that ‘RARITAN’s liability arising from any damages caused by a failure to perform, defective or late performance of this agreement shall be limited to the price that the Distributor has actually paid RARITAN for the Products that are object of the specific claim made by the Distributor. As a result of the foregoing, the Distributor expressly agrees that RARITAN shall not be liable for any other damage, including, for enunciative and not limiting purposes, loss of profits, consequential, incidental, indirect or special damages of any nature.